CARL FLOWERS, JR., as he is Trustee of THE CARL FLOWERS, JR. REVOCABLE TRUST v. THE INHABITANTS OF THE TOWN OF GROTON and PETER S. CUNNINGHAM, GEORGE F. DILLON, STUART M. SCHULMAN, JOSHUA DEGEN, and ANNA ELIOT, as they are the BOARD OF SELECTMEN OF THE TOWN OF GROTON

MISC 08-383623

February 16, 2011

MIDDLESEX, ss.

Trombly, J.

DECISION DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

This case came to be heard on October 5, 2010, on Plaintiff's Motion for Summary Judgment, seeking a declaration that a road discontinued by the Town of Groton in 1932 is not the road which runs through Plaintiff's property and that the road running through Plaintiff's property is still a public way today.

Statement of Facts

Plaintiff Carl Flowers, Jr., as Trustee of the Carl Flowers, Jr. Revocable Trust, is the owner of approximately 133 acres of land located in Groton and Dunstable, Massachusetts. Plaintiff refers to the road running through his property as "Dan Parker Road." It is this road which Plaintiff seeks to show was not discontinued by the Town of Groton in 1932, and that it remains a public way today. Plaintiff's residence is the only house on this section of the road which he terms Dan Parker Road. [Note 1]

The evidence relied upon by Plaintiff in support of his motion for summary judgment is summarized below.

Acting on Article 4 of the March 30, 1772 Groton town meeting warrant, the town voted to accept the report of a committee that had been chosen to view a road that had been laid out by order of the Board of Selectmen and which ran from the land of John Woods (a predecessor in title to Plaintiff) to land of Oliver Fletcher. The town also voted at the meeting to record the report. The road, as laid out according to the report, ran from the Groton-Dunstable town line southerly to the vicinity of what is today known as Martin's Pond Road. Plaintiff characterizes this road, as laid out, as running past the westerly side of his home. A road shown as running from the land of John Woods to the land of Jn. Johnson Jr. on an 1828-1829 map of Groton by Caleb Butler lies generally in the area of the road laid out in 1772. A road described as "To John Woods" also appears in Caleb Butler's field book for the 1828-1829 map.

By vote under Article 4 of the November 3, 1868 Town Meeting, the Town voted to accept and adopt the Selectmen's report which laid out a new section of road leading from the existing road running past James Fitzpatrick's house (laid out in 1772) to the Dunstable town line. [Note 2] As described by the Plaintiff, this new section of road ran past the easterly side of his home.

In 1932, the Groton Selectmen published a warrant for the February 1, 1932 Annual Town Meeting. Article 14 of the Warrant was: "To see if the Town will vote to close certain roads within the limits of Groton." The town subsequently voted: "To abandon the following Roads: (1) Dan Parker Road from Martins Pond Road to the Dunstable Road." [Note 3] Land Court Plan 1844A dated July 1907 does show a Dunstable Road in Groton; however, the 1932 town meeting vote was the earliest reference in public records to a road called "Dan Parker Road." There is no prior record showing a road laid out by that name, nor is there a road re-named to that name by the Town of Groton. As of 2005, the town's street list did not contain any road known as Dan Parker Road.

In 1932 the owner of Plaintiff's property was James Fitzpatrick. The Groton poll tax lists for 1930, 1931, 1933, 1934, 1935, and 1936 include a James Fitzpatrick who resided on Shattuck Street (a list for 1932 was not provided to the Court). The Groton assessor's valuation lists for 1930 through 1938 list James Fitzpatrick as a resident of Shattuck Street. The death certificate of a James Fitzpatrick, who died on February 18, 1938, lists his place of residence as Shattuck Road in Groton.

A 1936 traffic flow map for the Town of Groton refers to the road running past Plaintiff's house as Dan Parker Road. On the 1936 Traffic Flow Map, the portion of Dan Parker Road located to the north of Raddins Road is depicted with a thicker line than the portion of Dan Parker Road located to the south of Raddins Road, presumably indicating that the volume of traffic on Dan Parker Road north of Raddins Road was greater than the volume of traffic on Dan Parker Road south of Raddins Road.

Harlan Fitch was a member of the Groton Planning Board from 1947 to 1949 and he prepared a plan dated November 1948, which was recorded with the Middlesex South District Registry of Deeds in Book 7391, Page 267. The plan is referenced in the deed of the Town of Groton to Carroll X. Williams and Elizabeth C. Haley dated January 26, 1949, and recorded with said deeds on January 31, 1949, in Book 7391, Page 265. The plan is also referenced in the deed of Carroll X. Williams and Elizabeth C. Haley to Elmer S. Carlson and Esther Silveus Carlson dated January 31, 1949, and recorded in Book 7391, Page 266. The plan is also referenced in the deed to Plaintiff recorded in Book 20109, Page 561. The plan shows both Raddin Road and Dan Parker Road by means of dashed lines.

The 1953 Groton Annual Report identifies Dan Parker Road as a "wood road" that has been greatly improved by the Highway Department. The Town's Master Plan of 1963 includes a plan showing Dan Parker Road as an "existing" way and as a "local road." The 1966 General Highway Map of Middlesex County shows the road past Plaintiff's house as Dan Parker Road and classifies it as a "gravel or stone road, graded and drained - Type E." The legend for the plan states that "roads designated as private by local authorities are not shown."

In a letter dated October 19, 2005, town counsel stated that the effect of the February 1, 1932, Town Meeting vote was "to discontinue Dan Parker Road as a public road, from its intersection with Martin's Pond Road to the Dunstable town line." The March 1, 1998, Groton Zoning Map shows Raddin Road intersecting an unnamed road, which runs through Plaintiff's property to the Groton-Dunstable town line. The words "Dan Parker Road" appear on the map but do not appear to be connected to any line depicting a road.

Standard of Review

Summary judgment is appropriate when there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Mass. R. Civ. P. 56(c); Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the court reviews "the evidence in the light most favorable to the nonmoving party." Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002). Where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). In order to determine if a dispute about a material fact is genuine, the court must decide whether "the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006); Molly A. v. Comm'r of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007).

Discussion

Plaintiff advances two primary arguments in support of his motion for summary judgment. First, Plaintiff argues that the 1932 town meeting warrant and vote did not operate to abandon the road running through his property (referred to by him as "Dan Parker Road") because the wording of the warrant was not sufficient to put voters on notice of the business to be acted upon at the town meeting. Second, Plaintiff argues that even if the 1932 town meeting warrant was sufficient, the road abandoned by the 1932 annual town meeting (Dan Parker Road) was not the road which runs through Plaintiff's property, which Plaintiff refers to today as Dan Parker Road.

Central to both of Plaintiff's arguments is an assumption that the road running through his property was at some point in time a public road. Relative to this Decision, I assume, without deciding, that at some point in time the road running through Plaintiff's property was a public road for purposes of upkeep.

The warrant at issue in this case proposed action to "see if the Town will vote to close certain roads within the limits of Groton." Plaintiff argues that the warrant "did not come even close" to satisfying the substantial certainty requirement because it only stated that the abandonment of certain roads would be considered and did not specify which roads would be considered for abandonment at the meeting. Substantial certainty is required as the nature of the action to be taken. Id. While it may have been preferable for the town to list the specific roads which it would consider abandoning at the meeting, this Court does not discern any such requirement. It seems clear that any citizen who was concerned about a particular road in Groton being abandoned was provided with sufficient notice to attend the town meeting and participate in the vote.

In Avery v. Stewart, the Supreme Judicial Court was called upon to decide the sufficiency of a warrant article "to see if the town will lay out, alter, or discontinue, or otherwise dispose of, any town way." Avery v. Stewart, 55 Mass. 496 , 502 (1848). This warrant language is strikingly similar to that at issue in this case. At town meeting, the town voted "to discontinue the road leading from William Gates's to the pond." Id. at 498. The court found that the warrant gave sufficient notice "to advertise the inhabitants of the town, that they would be called upon to act on the subject of laying out or discontinuing or altering any town way; and that it was not necessary to give any more particular notice." Id. at 502.

In addition, Chapter 403, Section 2 of the Acts of 1935 ratified proceedings of prior town meetings, stating:

All town meetings called in pursuance of a warrant, under the hands of the selectmen, notice of which was given at least seven days before such meeting, and the acts and proceedings thereof, and of the officers elected thereat, in so far as said meetings, acts or proceedings were invalid by reason of the failure to call the meetings in accordance with section ten of chapter thirty-nine of the General Laws or corresponding provisions of earlier laws, are hereby validated and confirmed.

1935 Mass. Acts 444.

Upon consideration of these facts and the surrounding circumstances, I find that the warrant for the February 1, 1932, town meeting gave legally sufficient notice of the action that was later taken with respect to a roadway known as Dan Parker Road.

Road Abandoned by 1932 Town Meeting

Plaintiff next argues that even if the 1932 town meeting warrant was sufficient, the road abandoned by the 1932 annual town meeting (Dan Parker Road) was not the road which runs through Plaintiff's property, which Plaintiff refers to today as Dan Parker Road. The question of whether a road is a public way is one of fact, and the party asserting that status bears the burden of proof. Schulze v. Town of Huntington, 24 Mass. App. Ct. 416 , 417 (1987) (citing W.D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct. 18 , 19 (1979); Witteveld v. City of Haverhill, 12 Mass. App. Ct. 876 , 877 (1981)).

In support of his claim that the road abandoned by the 1932 Groton town meeting is not the road running through his property (and therefore remains a public way as laid out), Plaintiff has produced numerous records, including various maps, deeds, and town records. In addition, Plaintiff also relies on a lengthy affidavit by Dennis Drumm, a land surveyor. If these records make anything clear, it is only that the roadways of Groton have consistently been referred to inconsistently.

Plaintiff cites numerous documents stating that during the 1930s, James Fitzpatrick (Plaintiff's predecessor in title) resided on Shattuck Street (also known as Shattuck Road), and not on a road then known as Dan Parker Road. Therefore, according to Plaintiff, the road abandoned by the town in 1932 (Dan Parker Road) was not the road running through Plaintiff's property. One of the documents cited in support of this assertion is Mr. Fitzgerald's death certificate, which states that at the time of his death in 1938, he was a resident of Shattuck Road in Groton. Plaintiff also relies on the poll tax lists and assessor's valuation lists to show that James Fitzpatrick resided on Shattuck Street or Shattuck Road during the relevant time period, not on Dan Parker Road. Then, in support of his argument that the town did not abandon the road running through his property, Plaintiff points to a 1936 traffic flow map which shows that the traffic flow was measured for the road running through Plaintiff's property and therefore, he contends, "strongly suggests" that Dan Parker Road was still a public way four years after its alleged abandonment, otherwise the town would not have gone through the trouble of measuring the traffic flow. That map identifies the road running through Plaintiff's property as Dan Parker Road. In sum, the documents provided to the Court indicate that prior to 1936 the road running through Plaintiff's property was known as Shattuck Street or Shattuck Road (as evidenced by the poll tax lists and the assessor's valuation lists), then in 1936 the road running through Plaintiff's property was known as Dan Parker Road (on the traffic flow map), and then in 1938 the road running through Plaintiff's property was again known as Shattuck Street (or Shattuck Road). This fact alone demonstrates that Plaintiff cannot meet his burden on summary judgment.

In addition, Dennis Drumm's affidavit concludes by stating, "whether or not the 1932 abandonment [of "Dan Parker Road from Martin's Pond Road to the Dunstable Road"] is referring to Rocky Hill Road or some other road [as opposed to the road running through Plaintiff's property] is uncertain, but it is my opinion that the road leading north from Martin's Pond Road past Plaintiff's house, past the Groton/Dunstable town line and to the southerly end of Kemp Street [in Dunstable] is a public wa[y] today." This statement itself admits to the confusion and uncertainty surrounding this issue. If the 1932 abandonment could have been referring to some road other than Rocky Hill Road, as suggested by Mr. Drumm, it seems that there is at least some possibility that the road that was referred to was the one running through Plaintiff's property.

Finally, in a letter to the Groton Board of Selectmen dated April 18, 1983, Plaintiff himself stated, "Your Town's Council has correctly identified Dan Parker Road as a private Way." This statement is in direct opposition to Plaintiff's contention today that "the road running through plaintiff's property . . . remains a public way today."

Plaintiff invites the Court to make various interwoven inferences based upon the records produced in order to conclude that the road running through his property was not abandoned by the 1932 town meeting. For example, Plaintiff points to the assessor's poll tax lists and valuation lists as evidence that the road running through Plaintiff's property was known as Shattuck Street. Plaintiff then invites me to infer that because the same three people served as Groton's selectmen and assessors in 1932, surely they would have identified the road being abandoned by the 1932 town meeting as Shattuck Road if they intended to abandon the road running through Plaintiff's property. I decline to draw such inferences, which are based almost entirely on speculation about events that occurred nearly eighty years ago. I also decline to credit the various maps and plans produced by Plaintiff which do not make any clear distinction between private and public roads. See W.D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct. 18 , 20 (1979); Fenn v. Town of Middleborough, 7 Mass. App. Ct. 80 , 87 (1979).

Conclusion

The warrant for the February 1, 1932, town meeting gave legally sufficient notice of the action that was taken with respect to a roadway known as Dan Parker Road. The issue of whether or not the road running through Plaintiff's property (referred to by Plaintiff as Dan Parker Road) is a public way cannot be properly disposed of by summary judgment in favor of Plaintiff. On the contrary, the evidence indicates that the road running past Plaintiff's property, whatever its name, was discontinued by the passage of Article 14 of the 1932 Groton Town Meeting. Plaintiff's Motion for Summary Judgment must therefore be DENIED.

Judgment to enter dismissing the complaint.

Charles W. Trombly, Jr.

Justice

Dated: February 16, 2011

FOOTNOTES

[Note 1] A sketch is attached hereto which delineates the approximate location of Plaintiff(s land and various streets and roads in the area.

[Note 2] Plaintiff alleges that this 1868 layout "altered" the 1772 layout, presumably meaning that the use of a portion of the 1772 layout was discontinued. For purposes of this Decision, I assume, without deciding, that this was the case and that the 1868 layout is the road running through Plaintiff's property to the extent that it altered the 1772 layout.

[Note 3] The Court notes that the language of this vote refers to a road running to Dunstable Road, while the roads laid out in 1772 and 1868 ran to the Dunstable town line. Pursuant to Article 14 of the Warrant, the town also voted to abandon "John Henry Blood Road from Rocky Hill Road to the end" and the "[r]oad from Fernald's on Boston Road to the Sandy Pond Road."